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Monday, July 23, 2018

In Ayodhya case, a question recalled: Is mosque central to prayer in Islam?

SC is examining whether to reconsider a judgment it passed not long after the Babri Masjid was brought down. The Indian Express recaps what it said then, under what circumstances.

Written by Ananthakrishnan G | Updated: March 19, 2018 12:03:40 pm
Ayodhya case expalined In the Background, Babri Masjid.

A Supreme Court Bench hearing the Ayodhya title suit last week said it would first examine whether a judgment passed by the court back in 1994 needed to be referred to a larger Bench for reconsideration. The order in Dr M Ismail Faruqui Etc. vs Union Of India And Others (October 24, 1994), passed a little less than two years after the Babri Masjid was demolished, said that a mosque was not an “essential part of the practice of the religion of Islam” and hence, “its acquisition (by the state) is not prohibited by the provisions in the Constitution of India”. What was the question before the court then?

The petition

The petition challenged the constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993, under which 67.703 acres of land in and around the Babri Masjid, which had been demolished on December 6, 1992 by kar sevaks, was acquired by the Centre.

It also questioned the maintainability of the Special Reference made by then President Shankar Dayal Sharma on January 7, 1993, to the Supreme Court under Article 143(1) of the Constitution, asking “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?”

The hearing

The matter was heard by a five-judge Constitution Bench comprising Chief Justice of India M N Venkatachaliah and Justices J S Verma, A M Ahmadi, G N Ray and S P Bharucha. A larger question raised at the hearing was that the state cannot acquire “any mosque, irrespective of its significance to the practice of Islam… because of the special status of a mosque in Mahomedan Law”. The acquisition of a mosque violates rights under Articles 25 and 26, it was argued.

Majority decision

A majority — Venkatachaliah, Verma and Ray — upheld the acquisition, saying “any step taken to arrest escalation of communal tension… can, by no stretch of argumentation, be termed non-secular… or against the concept of secularism — a creed of the Indian people embedded in the ethos.” The judges noted that “the right to practise, profess and propagate religion guaranteed under Article 25… does not necessarily include the right to acquire or own or possess property. Similarly this right does not extend to the right of worship at any and every place of worship so that any hindrance to worship at a particular place per se may infringe the religious freedom guaranteed under Articles 25 and 26… The protection under Articles 25 and 26… is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion.”

They said that “under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession” (and) “if that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State.”

A mosque, the judges said, “is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India”.

The majority upheld the 1993 Act, but struck down as “unconstitutional and invalid” its Section 4(3), which said that judicial proceedings in all matters relating to property vested in the central government “shall abate” on the date of the commencement of the Act. This, the court said, was “an extinction of the judicial remedy for resolution of the dispute amounting to negation of rule of law”.

On the Reference

The three judges did not answer the Reference. The majority verdict said that in view of the court upholding the Act and striking down Section 4(3), the suits and legal proceedings between the parties stood revived, and had to be adjudicated. The Reference, therefore, “becomes superfluous and unnecessary”, the court said. “We,
accordingly, very respectfully decline to answer the Reference and return the same.”

The majority decision also called for a settlement of the dispute through negotiations. “This is a matter suited essentially to resolution by negotiations which does not end in a winner and a loser while adjudication leads to that end, it is in the national interest that there is no loser at the end of the process adopted for resolution of the dispute so that the final outcome does not leave behind any rancour in anyone. This can be achieved by a negotiated solution… Unless a solution is found which leaves everyone happy, that cannot be the beginning for continued harmony between “we the people of India”.”

Minority view

Justices Bharucha and Ahmadi found that the “Act and the Reference… favour one religious community and disfavour another”; therefore “the purpose of the Reference is… opposed to secularism and is unconstitutional”. Also, the judges said, “the Reference does not serve a constitutional purpose.”

The minority judgment struck down the 1993 Act “as being unconstitutional”, and returned the Presidential Reference without answering. “When… adherents of the religion of the majority of Indian citizens make a claim upon and assail the place of worship of another religion and, by dint of numbers, create conditions that are conducive to public disorder, it is the constitutional obligation of the State to protect that place of worship and to preserve public order… It is impermissible under the provisions of the Constitution for the State to acquire that place of worship to preserve public order. To condone the acquisition of a place of worship in such circumstances is to efface the principle of secularism from the Constitution,” the minority judgment said.

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